Bad Faith and the Record Rule
There has been a recent explosion of disputes in which the Supreme Court must decide when there is evidence of bad faith that is powerful enough to justify a reviewing court’s decision to allow a petitioner to rely on extra-record evidence or to develop extra-record evidence as part of the basis for review of an agency action. Two of the disputes raise the question of when a reviewing court can consider the statements of a president in reviewing either a presidential action or an agency action. The more recent cases raise the related questions of when there is evidence of bad faith sufficient to allow a reviewing court to authorize discovery in the form of obtaining evidence in an agency’s records that falls within the scope of the deliberative process privilege and through the process of cross-examining an agency decision maker.
So far I would give the Court high marks for addressing these disputes in a sensible manner, but the Court will continue to be challenged to address many more disputes of this type. The present political environment is capable of generating a seemingly unlimited stream of cases in which the validity of an action depends on the intent of a government official, and in which there is credible evidence that the official is lying about his intent.
The four recent cases that illustrate this phenomenon are: (1) the decision of the Supreme Court to consider the statements of President Trump that reflect his anti-Muslim animus in the process of reviewing his third travel ban; (2) the decision of the Fifth Circuit, upheld by an equally-divided Supreme Court, to consider the statements of President Obama with respect to the DACA program created by the Department of Homeland Security (DHS) in the process of deciding whether the analogous DAPA program was created through issuance of a valid statement of policy or a procedurally invalid legislative rule; (3) the decision of the Supreme Court to stay temporarily the discovery process through which petitioners who were challenging the legality of the decision of DHS in the Trump Administration to rescind the DACA program sought to obtain agency records that arguably fall within the scope of the deliberative process privilege; and, (4) the decision of the Supreme Court to stay temporarily the order of a reviewing court that had authorized petitioners to cross-examine the Secretary of Commerce in an effort to prove that he was motivated by a desire to facilitate discrimination against immigrants when he decided to include a question on citizenship status in the census questionnaire.
In the travel ban case I think the Supreme Court was right to consider Trump’s many statements that evidenced extreme hostility toward Muslims in the context of a presidential action that was putatively based on national security but that many people believed to be based on the president’s oft-stated animosity toward Muslims and oft-stated desire to keep all Muslims out of the country. The Court’s decision to consider the president’s statements was consistent with cases like Florida Power & Light v. Lorion, 470 U.S. 729, 743-44 (1985), and U.S. v. Chemical Foundation, 272 U.S. 1, 14-15 (1926). The Court has long held that the presumption of regularity of government actions can be overcome by powerful evidence of bad faith and that courts can consider extrinsic evidence of bad faith in such cases. Trump’s statements met that criterion.
The Court’s decision to review the action, albeit through application of an easy-to-satisfy standard, was consistent with cases like Webster v. Doe, 486 U.S. 592, 601-04 (1988), in which the Court held that an action that was putatively based on national security was unreviewable except in the context of a well-supported claim that the action was actually motivated by factors that would render it unconstitutional. I also think the Court was right to uphold the action in light of its characteristics that supported the government’s argument that it was actually based on national security. I believe that the Court would not have upheld either of the first two travel bans because they lacked most of the characteristics that the Court identified as important to its decision to uphold the third ban.
The Fifth Circuit opinion in the DAPA case raised an important question that distinguishes it from the travel ban cases. When, if at all, should a court consider the statements of the president in the process of deciding what an agency, as opposed to the president, intended when it took an action? Twenty years ago, I would have said that courts should give no consideration to presidential statements in this context because it is inappropriate to attribute the president’s motives and intent to an agency that says it is taking an action that is inconsistent with the president’s characterization of that action. I am much more willing to take the step of attributing the president’s motives and intent to an agency today when the agency action is one that the president claims as his own.
There is a lot of evidence that presidents have increasingly been playing outcome-determinative roles in the context of the many major agency actions for which the president takes credit. The president’s role typically includes both insistence that the agency act in a particular manner and insistence that it act more rapidly than the procedures required for it to act would permit. Jerry Mashaw and David Berke have written an article in which they document in detail the ways in which both Obama and Trump dictated the actions taken by agencies in several high political salience areas, including immigration. Presidential Administration in a Regime of Separated Powers: An Analysis of Recent American Experience, 35 Yale J. Reg. 549 (2018).)
The main issue the Fifth Circuit addressed was whether the DACA and DAPA actions were non-binding statements of policy that were exempt from the notice-and-comment process or were instead procedurally invalid substantive rules. The Fifth Circuit applied tests that the D.C. Circuit has been applying for decades that draw that distinction based on whether the agency has announced a policy that allows it to exercise discretion in individual cases or instead a policy that requires it to act in a particular way in specified circumstances. (I leave for other occasions the question whether the D.C. Circuit’s method of distinguishing between policy statements and rules is the best way of making that distinction.) The government argued that the agency was not required to use notice and comment to issue the statements that created DACA and DAPA because they left the agency free to exercise its discretion to deny the benefits conferred by the statements to an applicant who met all of the stated objective criteria. Under the government’s interpretation, an applicant who satisfied all eligible criteria would thus still be at risk of deportation. Indeed, such an applicant, by the very act of applying for protection, would be increasing his risk of deportation significantly by providing the agency all of the data needed to determine that the applicant was an undocumented alien who was otherwise eligible for deportation.
The court considered various Obama statements in the process of deciding that the putatively non-binding statements of enforcement policy were actually procedurally invalid rules. First, Obama repeatedly assured prospective applicants for both programs that they could “safely come out of the shadows” and identify themselves as undocumented aliens by applying without fear that they might be deported. Those statements were inconsistent with the government’s claim that the agency actions that created the programs were only non-binding statements of the agency’s general policies. Obama’s statements were consistent instead with a program that assures anyone who satisfies the stated criteria that she will be placed in the protected class. The court also relied on statements in which Obama said that immigration officials who deny DACA or DAPA status to an applicant who meets the stated criteria would be in trouble and could face disciplinary action.
I think the Fifth Circuit was right to conclude that the agency statements were procedurally invalid rules. The only evidence the government offered to prove that the agency statements left immigration officers with discretion to deny DACA or DAPA status to applicants who met the objective criteria stated in the documents were passages in the documents themselves. The petitioners produced other types of evidence that were consistent with Obama’s statements and the petitioners’ claims and inconsistent with the government’s argument that immigration officers had discretion to turn down applicants that met the objective criteria. That evidence included internal agency documents that seemed clearly to mandate acceptance of any applicant who satisfies the objective criteria and testimony of immigration officers that they were instructed to grant DACA or DAPA status to any such applicant.
I think the Supreme Court was right to stay temporarily the order of a district judge that required DHS to provide petitioners with agency records that arguably fall within the scope of the deliberative process privilege in the case in which petitioners are challenging the legality of the decision of DHS in the Trump Administration to rescind the DACA program. Forcing an agency to make public records that fall within the scope of the deliberative process privilege has the potential to do a lot of damage to government decision making in all contexts by discouraging all government employees from engaging in candid communications about the actions they are considering. A court should require an agency to disclose records that fall within the scope of the deliberative process privilege only in extraordinary circumstances. It was at least premature to allow a district court to require an agency to disclose such records without first requiring the court to explain in detail why the circumstances are so extreme that they justify such an extraordinary remedy.
I also think the Supreme Court was right to stay temporarily the order of a district court that required the Secretary of Commerce to appear as a witness and to be cross-examined in the case in which petitioners are challenging the legality of the Secretary’s decision to include a question about citizenship in the census questionnaire. Allowing a petitioner to cross-examine an agency decision maker can cause damage of two types. First, it interferes with the decision maker’s ability to perform his many important duties. Second, if the cross-examination includes questions that would elicit responses that fall within the scope of the deliberative process privilege it has the same potential to cause widespread damage to all government decision making that the discovery order in the DACA case would have produced. It is a procedure that should be authorized only in extraordinary circumstances. It was at least premature to authorize such a potentially damaging remedy without first requiring the court to explain in detail why it the circumstances are so extreme that they justify such an extraordinary procedure.
The problem the Supreme Court must face eventually will be to resolve the scope of permissible discovery and permissibility of cross-examination questions that are raised in the DACA and census cases on the merits, rather than in the context of a temporary stay. When the Court reaches that point in its decision making process, it will need to describe with care the decisional framework it used to make its decision in each case. Lower courts will need a lot of guidance on how to resolve similar disputes.The decisional framework should impose a much higher burden of proof of bad faith to justify use of discovery or cross-examination to create extra-record evidence than to justify use of publicly available extra-record evidence, given the much higher cost of allowing a petitioner to use discovery or cross-examination in an effort to create extra-record evidence. The current political environment is likely to produce scores of disputes of the type the Supreme Court must resolve in the DACA rescission and census question cases.
 Trump v. Hawaii, 138 S.Ct. 2392 (2018).
 Texas v. United States, 809 F. 3d 134 (5th Cir. 2015), aff’d by an equally divided Court, 136 S.Ct. 2271 (2016).
 In re United States, 138 S.Ct. 443 (2018).
 In re Department of Commerce, 2018 WL 5259090, Sup Ct. Docket No. 18A375 (Oct. 22, 2018).
Richard J. Pierce, Jr. is the Lyle T. Alverson Professor of Law at George Washington University Law School.